Edited version of private advice

Authorisation Number: 1052197800278

Date of advice: 8 December 2023

Ruling

Subject: Residency

Question

Is the taxpayer a resident of Australia for tax purposes?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were living in Country A in a Motor home for XX years, which you sold to come to Australia.

You worked in Country A as an XXX tradesman between 20XX and 20XX.

You have resided in Australia since XX May 20XX, entering the country in a 417 Visa, which you applied for on the XX November 20XX.

You gained employment in Australia working as XXXX for Company A.

You moved to City A in January 20XX where you worked doing XXX maintenance for commercial and domestic properties. You worked with this employer for a period of X years and X months. During this time and through the pandemic you swapped to a 408 Visa choosing to remain in Australia.

Your now partner moved to City A in June 20XX after lockdown in City B and you met in July 20XX.

You and your partner rented a XXX from XX September 20XX and you both settled in City A until May 20XX.

You both became part of the community in City A.

You own your own car, motorbike, and trailer, and you bought all the tools needed for your trade.

Your partner became pregnant in 20XX, and you both decided to remain in Australia as you wanted to have your child in Australia. Whilst at the time your baby was born, your health insurance did not cover pregnancy, you are paying the medical expenses back steadily. You now have Private Health Insurance with Company A, which covers all three of you.

You both decided to move to City C in May 20XX, you have found a job and currently are processing a sponsorship with the company.

You are renting in City C with your current lease due to end in May 20XX, however you are looking to extend this.

You have joined the community and found a local playgroup for your child.

You both aim to settle in Australia and have no plans to return home to Country A.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

Income Tax Assessment Act 1997 Subsection 995-1

Reasons for decision

Question

Is the taxpayer a resident of Australia for tax purposes?

Answer

Yes.

Detailed reasoning

For tax purposes, you are a resident of Australia if you meet at least one of the following tests. You are not a resident of Australia if you do not meet any of the tests.

The resides test (otherwise known as the ordinary concepts test)

•         the domicile test

•         the 183-day test

•         the Commonwealth superannuation fund test.

We have considered your circumstances, and conclude that you are a resident of Australia for 01 July 2021 - 30 June 2023, as follows:

•         You are a resident of Australia according to the resides test.

•         You do not meet the domicile test because your domicile is not in Australia.

•         You do meet the 183-day test because you were in Australia for 183 days or more during the 2021-2023 income years, and the Commissioner is not satisfied that:

­   your usual place of abode is outside Australia,

­   you do not intend to take up residence in Australia.

­   You do not fulfill the requirements of the Commonwealth Superannuation test.

More information

For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.